Wed January 9, 2013

James Holmes in a photo from the Arapahoe County (Colo.) Sheriff's Office.

AP

In the weeks before the attack, James Holmes took photos of the Colorado movie theater where 12 people were killed and dozens more wounded in last summer's mass shooting, prosecutors revealed Wednesday at a court hearing in Colorado.

"In one, marked 6:22 p.m., he was wearing black contact lenses. His hair was dyed red under a black cap, and he stuck out his tongue at the camera. In another image, he is seen smiling with the muzzle of a Glock handgun in the frame. Prosecutors told the court they introduced the self photos because they help show Holmes' 'identity, deliberation and extreme indifference.' "

Wednesday was Day 3 of a preliminary hearing to officially determine whether there's enough evidence to go forward with a trial. The proceedings are now over, local news outlets say, and the 25-year-old Holmes' attorneys chose not to call any witnesses. It's thought they may try to argue that he is insane.

Turning to Colorado, where the question of whether James Holmes should stand trial now rests with the judge. Holmes is accused of killing 12 people in an Aurora movie theater in July. Prosecutors wrapped up their presentations in a pretrial hearing today.

AUDIE CORNISH, HOST:

Holmes defense had the opportunity to call witnesses about his mental state, but they declined to do that or even to make a statement. The judge could decide by Friday what happens next. Colorado Public Radio's Ben Markus was in the courtroom today and joins us now. And Ben, tell us some of what you heard in the court today.

BEN MARKUS, BYLINE: So an Aurora police sergeant was the only witness called this morning, the last witness for this pretrial hearing. He described how a forensics team downloaded photos from James Holmes' iPhone, which was recovered at the scene. Some of the photos were surveillance photos of the theater where the shooting happened, entrance and exit doors, some other photos, disturbing photos James Holmes took of himself.

He's in SWAT-like tactical gear. He has a rifle in some of the photos. He's wearing black contacts. Makes him look almost alien. Sticking his tongue out in some photos. He's got the bright orange hair. Some in the courtroom were disturbed by the photos and had to put their face in their hands.

CORNISH: And as we mentioned, the defense for James Holmes didn't call any witnesses. Is that correct?

MARKUS: No. And typically defenses don't call witnesses in these pretrial hearings. There was some thought that they would because they had asked permission to call two witnesses. But when the judged asked them if they had any witnesses to call this morning, they stood up and said no, that this was neither the time nor the place to explore Holmes' sanity. In some of the cross-examination this week of prosecution witnesses, Holmes attorney's focused on Holmes odd behavior during interrogation, doing strange things.

CORNISH: So what's the next step in the legal process?

MARKUS: So now we're awaiting the judge's order on whether or not Holmes' case will go to a full trial. He scheduled a court date for Friday morning. It's likely that his order will come down before that. If it does, then the Friday court date is an arraignment and James Holmes will have an opportunity to enter a plea; guilty, not guilty, or not guilty by reason of insanity. It's also possible that his attorneys can file a motion to delay that plea.

CORNISH: And have prosecutors said if they'll pursue the death penalty yet?

MARKUS: No, they haven't. If Holmes is arraigned on Friday, then prosecutors have 60 days to decide whether or not they'll pursue the death penalty. The new district attorney here in Arapaho County was sworn in just this week. During his campaign, he did not indicate whether or not he would pursue the death penalty.